France, Nuclear Weapons Policy, and the Right to Life

List of Issues Prior to Reporting | Submission to the United Nations Human Rights Committee During its Periodic Review of France

132nd SESSION OF THE UNITED NATIONS HUMAN RIGHTS COMMITTEE 28 JUNE TO 23 JULY 2021

Submitted 5 May 2021 by:

LAWYERS COMMITTEE ON NUCLEAR POLICY www.lcnp.org | [email protected] 220 E. 49th St., 1B, New York, NY 10017 USA +1 (212) 818-1861

Founded in 1981, LCNP is a nonprofit educational association of lawyers and legal scholars that engages in research and advocacy in support of the global elimination of nuclear weapons and a more just and peaceful world through respect for domestic and international law. LCNP serves as the United Nations office of the International Association of Lawyers Against Nuclear Arms.

SWISS LAWYERS FOR NUCLEAR DISARMAMENT www.safna.org

Founded in 2014, SLND encourages all efforts towards general and complete disarmament, in particular nuclear disarmament. SLND is an affiliate of the International Association of Lawyers Against Nuclear Arms. WESTERN STATES LEGAL FOUNDATION www.wslfweb.org 655 13th Street, Suite 201, Oakland, CA 94612 USA

Founded in 1982, WSLF is a nonprofit organization that seeks to abolish nuclear weapons as an essential step in making possible a more secure, just, and environmentally sustainable world. Grounded in commitments to nonviolence and international law, WSLF provides independent information and analysis to a wide range of audiences. WSLF is an affiliate of the International Association of Lawyers Against Nuclear Arms.

JAPAN ASSOCIATION OF LAWYERS AGAINST NUCLEAR ARMS ⽇本反核法律家協会 (hankaku-j.org) 20-4-906 Araki-cho, Shinjuku-ku, Tokyo, 160-0007, Japan

Founded in 1994, JALANA aims at abolition of nuclear weapons, support for the Hibakusha (victims of all nuclear activities including those of the 1945 Atomic Bombings and the 2011 Fukushima Disaster), and creation of a society independent of nuclear energy. JALANA is an affiliate of the International Association of Lawyers Against Nuclear Arms.

INTERNATIONAL ASSOCIATION OF LAWYERS AGAINST NUCLEAR ARMS www.ialana.info Marienstrasse 19/20, 10117 Berlin, Germany

Founded in 1987, IALANA is an international association of lawyers and lawyers’ organizations working for the elimination of nuclear arms, the strengthening of international law and the development of effective mechanisms for the peaceful settlement of international disputes.

2 Introduction

The use and threat of use of nuclear weapons is incompatible with multiple rights enshrined in the International Covenant on Civil and Political Rights (ICCPR).1 For practical reasons, however, this submission concentrates on the non-derogable right to life (Article 6)—the most fundamental human right.

Article 6 of the ICCPR defines the right to life in its paragraph 1 in the following terms: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”

We will demonstrate in this submission that the threat or use of nuclear weapons would constitute an “arbitrary deprivation” of life and amount, as a result, to a breach of ICCPR Article 6.

In 2018, in General Comment 36, the United Nations Human Rights Committee addressed nuclear weapons, finding among other things that the use or threat of use of nuclear weapons "is incompatible with respect for the right to life." The general comment is considered the Committee’s authentic interpretation of the right to life within the meaning of Article 6 and the relevant practice thereto.

In this submission, Lawyers Committee on Nuclear Policy (LCNP), Swiss Lawyers for Nuclear Disarmament (SLND), Western States Legal Foundation (WSLF), Japan Association of Lawyers Against Nuclear Arms (JALANA), and International Association of Lawyers Against Nuclear Arms (IALANA), drawing on the general comment, maintain that the policy and practice of France in relation to nuclear weapons contravenes the right to life under the ICCPR in multiple ways. We address: France’s nuclear arsenal; the illegality of threat or use of nuclear weapons; the obligation to negotiate to achieve nuclear disarmament; adequate reparation to victims of nuclear explosive testing; and the least diversion of resources. Finally, we offer suggested questions, including one regarding a recent report concerning the inadequacy of compensation to victims of testing.

We have previously submitted comments to the Committee concerning the nuclear weapons policy of the Russian Federation2 and the nuclear weapons policy of the Democratic People’s Republic of

1 For an overview, see Daniel Rietiker, Humanization of Arms Control, Paving the Way for a World Free of Nuclear Weapons, Routledge 2018, pp. 184-198.

2 Russian Nuclear Weapons Policy and the Right to Life, List of Issues Submission to the United Nations Human Rights Committee During its Periodic Review of the Russian Federation, LCNP and WSLF, 1 June 2020.

3 Korea3 and have also made a submission to the Human Rights Council concerning the nuclear weapons policy of the United States of America.4

In paragraph 66 of General Comment No. 365 on the right to life set out in Article 6 of the ICCPR, this Committee found:

The threat or use of weapons of mass destruction, in particular nuclear weapons, which are indiscriminate in effect and are of a nature to cause destruction of human life on a catastrophic scale, is incompatible with respect for the right to life and may amount to a crime under international law. States parties must take all necessary measures to stop the proliferation of weapons of mass destruction, including measures to prevent their acquisition by non-state actors, to refrain from developing, producing, testing, acquiring, stockpiling, selling, transferring and using them, to destroy existing stockpiles, and to take adequate measures of protection against accidental use, all in accordance with their international obligations. [264] They must also respect their international obligations to pursue in good faith negotiations in order to achieve the aim of nuclear disarmament under strict and effective international control, [265] and to afford adequate reparation to victims whose right to life has been or is being adversely affected by the testing or use of weapons of mass destruction, in accordance with principles of international responsibility. [266]6

3 Democratic People’s Republic of Korea Nuclear Weapons Policy Violates the Right to Life, List of Issues Submission to the UN Human Rights Committee During its Periodic Review of the DPRK, LCNP and WSLF, 4 January 2021.

4 US Nuclear Weapons Policy Violates the Right to Life, Submission to the UN Human Rights Council Universal Periodic Review by LCNP, WSLF, and SLND, 3 October 2019.

5 United Nations Human Rights Committee, General Comment No. 36, released 30 October 2018, final edited version CCPR/C/GC/36, 3 November 2019. For commentary, see in particular contributions of Professor Roger Clark and Dr. Daniel Rietiker in Human Rights Versus Nuclear Weapons: New Dimensions, Lawyers Committee on Nuclear Policy, January 2021.

6 Human Rights Committee, General Comment No. 36, 30 October 2018, para. 66, CCPR/C/GC/36. The relevant footnotes read: 264 See Treaty on the Non-Proliferation of Nuclear Weapons, 1 July 1968, 729 UNTS 161; Comprehensive Test Ban Treaty, 10 Sept. 1996, Treaty on the Prohibition of Nuclear Weapons, 7 July 2017 (not yet in force); Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, 10 April 1972, 1015 UNTS 163; Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, 3 Sept 1992, 1974 UNTS 45. 265 General Comment 14, para. 7. Cf. Legality of the Threat or Use of Nuclear Weapons, 1996 ICJ 226, 267. 266 Concluding Observations: France (2015), para. 21.

4 Under the ICCPR, Article 4(2), the right to life is non-derogable, to be observed in all circumstances, even in the event of a “public emergency which threatens the life of the nation.”

France is a state party to the ICCPR and as a result is obligated to implement its provisions in good faith according to Article 26 of the 1969 Vienna Convention on the Law of Treaties (pacta sunt servanda). Though the jurisdiction of the Human Rights Committee is limited to the ICCPR, in interpreting the ICCPR the Committee must take into account other relevant sources of international law.7 We accordingly refer in this submission to several treaties in the field of arms control and to international humanitarian law.

A. France’s Nuclear Arsenal

France has approximately 300 nuclear warheads, with 290 deployed and 10 in reserve.8 Most are assigned to submarine-launched ballistic missiles and the rest are assigned to air-launched cruise missiles. The present size of France’s arsenal is about half of its size in the early 1990s; in recent years, it has remained stable.9

The French Navy operates four nuclear-powered submarines equipped with nuclear-armed long- range ballistic missiles carrying approximately 240 warheads.10 At least one of the submarines is on patrol at all times. France is upgrading its missiles and developing a third generation of submarines; it recently deployed a new warhead.

In February 2021, France announced plans to launch the full-scale development phase of the program to build France’s third-generation submarines. The Minister for the Armed Forces, Florence Parly, described the new nuclear submarine as “a program that fully embodies the ‘long time’ of our defense: the first third-generation SSBN (ballistic missile submarine) will be delivered in 2035, followed by one submarine every 5 years. And these will sail until 2090. In other words, the last sailors who will patrol on board the third generation SSBNs are not born yet.”11

7 Vienna Convention on the Law of Treaties, Art. 31 § 3 (1969).

8 Hans M. Kristensen and Matt Korda, “French Nuclear Forces, 2019,” Bulletin of the Atomic Scientists, 2 January 2019. See also Arms Control Association, Arms Control and Proliferation Profile: France (last reviewed July 2019).

9 Ibid.

10 Ibid.

11 “France Launches Third Generation SSBN Program – SNLE 3G,” NavalNews, 21 February 2021 (emphasis added).

5 The second component of France’s nuclear arsenal comprises the air-launched cruise missiles. These missiles are deliverable by land-based and carrier-based fighter-bombers; approximately 50 warheads are or can be deployed on the missiles.12 France “has begun design development of a stealthier, extended-range replacement” for the cruise missiles.13

France operates the Megajoule Laser, whose only counterpart is the US National Ignition Facility. The facilities were intended to result in very small-scale fusion reactions, in effect miniature thermonuclear explosions. Neither has succeeded in the endeavor of igniting a fusion reaction that produces more energy than the laser puts in and may never do so.14 They do, however, contribute to modeling of nuclear explosions and thus are part of the extensive infrastructures that have replaced nuclear explosive testing as a means of maintaining and designing nuclear warheads.15

B. The Illegality of Threat or Use of Nuclear Weapons

1. Use of Nuclear Weapons

The Committee’s finding that the threat or use of nuclear weapons is incompatible with respect for the right to life and may amount to a crime under international law is strongly supported by the law of armed conflict and by the prohibitions of war crimes, crimes against humanity, and genocide set out in the Rome Statute of the International Criminal Court. Nuclear weapons cannot be used in compliance with the law of armed conflict, including international humanitarian law, nor with the right to life, above all because their massive indiscriminate effects make it impossible to distinguish between military targets and civilian populations and infrastructure. Furthermore, nuclear weapons use releases devastating, long lasting radiation affecting all forms of life including the lives of future generations.16

12 Kristensen and Korda, supra.

13 Ibid.

14 Regarding the National Ignition Facility, see “Laser fusion reactor approaches ‘burning plasma’ milestone,” www.sciencemag.org, 23 November 2020.

15 See Le Commissariat à l’énergie atomique et aux énergies alternatives (CEA), Research Areas, Defence and Security, 29 June 2016: “The Megajoule Laser, at the Cesta Centre, is an essential tool for simulating the nuclear phase of weapon operation and for certifying the competence of the physicists responsible for designing the weapons.” https:// www.cea.fr/english/Pages/research-areas/defence-and-security.aspx; See also: Kristensen and Korda, supra.

16 As the International Court of Justice observed: “The radiation released by a nuclear explosion would affect health, agriculture, natural resources and demography over a very wide area. Further, the use of nuclear weapons would be a serious danger to future generations. Ionizing radiation has the potential to damage the future environment, food and marine ecosystem, and to cause genetic defects and illness in future generations.” Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, International Court of Justice (8 July 1996), 226, para. 35.

6 While full analysis and application of the law of armed conflict and international crimes to use of nuclear arms is beyond the scope of this submission, we explain briefly as follows. Relevant customary principles and rules of international humanitarian law include: the requirement of distinction (civilian immunity);17 the prohibition of indiscriminate attacks;18 the prohibition of causing unnecessary suffering;19 the requirement of precaution;20 the requirement of proportionality in attack;21 and the prohibitions on belligerent reprisals.22 The requirements of precaution and of proportionality in attack are among the principles and rules requiring protection of the environment in the conduct of armed conflict.23

In its 1996 Advisory Opinion, citing in particular the requirement of distinction between military and civilian targets and the prohibition of causing unnecessary suffering, the International Court of Justice observed that the use of nuclear weapons “seems scarcely reconcilable” with the law applicable in armed conflict.24 Also, the United Nations General Assembly affirmed the illegality of use of nuclear weapons in 196125 and has continued to do so up to the present. For example, in a 2020 resolution, Ethical imperatives for a nuclear-weapon-free world,26 the General Assembly declared:

Given the humanitarian impact of nuclear weapons, it is inconceivable that any use of nuclear weapons, irrespective of the cause, would be compatible with the

17 See Customary International Humanitarian Law, International Committee of the Red Cross, 2005, Vol. I, Rules (2005), Rules 1-10. Available at https://www.icrc.org/en/doc/resources/documents/publication/pcustom.htm.

18 Ibid, Rules 11-13.

19 Ibid, Rule 70.

20 Ibid, Rules 15-21.

21 Ibid, Rule 14.

22 Ibid, Rules 145-147.

23 Ibid, Rules 43-45.

24 Legality of the Threat or Use of Nuclear Weapons, para. 95.

25 Declaration on the prohibition of nuclear and thermo-nuclear weapons, A/RES/1653 (XVI), 24 November 1961, adopted by a vote of 55 in favor, 25 opposed, with 20 abstentions.

26 A/RES/75/73, 7 December 2020, adopted by a vote of 137 in favor, 37 opposed (including France), and 14 abstaining.

7 requirements of international humanitarian law or international law, or the laws of morality, or the dictates of public conscience.27

The illegality of use of nuclear weapons is also recognized by the Treaty on the Prohibition of Nuclear Weapons (TPNW), adopted at the United Nations by 122 states on 7 July 2017. The TPNW entered into force on 22 January 2021; 54 states, not including France, have ratified it as of the filing of this submission.28 The TPNW’s preamble reaffirms the need for all states to comply with applicable international law, including international humanitarian law and international human rights law. Reflecting input from the International Committee of the Red Cross, a leading authority on international humanitarian law, it recites relevant principles and rules of that law,29 and then states: “Considering that any use of nuclear weapons would be contrary to the rules of international law applicable in armed conflict, in particular the principles and rules of international humanitarian law[.]” It further states that “any use of nuclear weapons would also be abhorrent to the principles of humanity and the dictates of public conscience”—factors with legal as well as moral value.

Finally, experts have explained that no adequate humanitarian response would be possible in the event of a nuclear attack, particularly in an urban, densely populated area.30 Three governmental conferences, in 2013 and 2014, preceded negotiation of the TPNW. These conferences emphasized the catastrophic humanitarian consequences of nuclear weapons use. As stated in the Chair’s summary of the first conference, held in Oslo:

It is unlikely that any State or international body could address the immediate humanitarian emergency caused by a nuclear weapon detonation in an adequate manner and provide sufficient assistance to those affected. Moreover, it might not be possible to establish such capacities, even if it were attempted.31

27 Ibid, operative para. 3(h).

28 An additional 32 states have so far only signed the TPNW.

29 “Basing themselves on the principles and rules of international humanitarian law, in particular the principle that the right of parties to an armed conflict to choose methods or means of warfare is not unlimited, the rule of distinction, the prohibition against indiscriminate attacks, the rules on proportionality and precautions in attack, the prohibition on the use of weapons of a nature to cause superfluous injury or unnecessary suffering, and the rules for the protection of the natural environment[.]”

30 Rietiker, supra, p. 159.

31 Former Minister of Foreign Affairs Espen Barth Eide, "Chair’s summary Humanitarian Impact of Nuclear Weapons," 5 March 2013, https://www.regjeringen.no/en/historical-archive/Stoltenbergs-2nd-Government/Ministry-of-Foreign- Affairs/taler-og-artikler/2013/nuclear_summary/id716343/.

8 For all of the above reasons, we are convinced that the use of nuclear weapons would amount to “arbitrary deprivation” of life within the meaning of Article 6 § 1 of the ICCPR.

2. Threat of Nuclear Weapons

The possession of nuclear weapons coupled with the implication that the weapons will be used in certain circumstances beyond the control of the vast number of their potential victims impedes the full exercise of the right of life. Referring to the threat to the right to life posed by the designing, testing, manufacture, possession, and deployment of nuclear weapons, the Committee previously observed in General Comment No. 14 that “the very existence and gravity of this threat generates a climate of suspicion and fear between States, which is in itself antagonistic to the promotion of universal respect for and observance of human rights and fundamental freedoms….”32

France’s declared readiness to use nuclear arms in certain circumstances is incompatible with respect for the ICCPR right to life as interpreted by the Committee, in particular its finding that the threat or use of nuclear weapons is incompatible with respect for the right to life. President Emmanuel Macron’s speech of 7 February 2020 is a recent expression of that readiness. He stated:

Should the leader of any state underestimate France’s deep-rooted attachment to its freedom and consider threatening our vital interests, whatever they may be, that leader must realize that our nuclear forces are capable of inflicting absolutely unacceptable damages upon that State’s centres of power: its political, economic and military nerve centres.33

Elsewhere in the speech, President Macron stated that “it is essential to limit the role of deterrence to extreme circumstances of self-defence.”34

C. Obligation to Negotiate to Achieve Nuclear Disarmament

General Comment No. 36 states in its para. 66 that states parties to the ICCPR must respect their international obligation “to pursue in good faith negotiations in order to achieve the aim of nuclear

32 Human Rights Committee, General Comment No. 14, Right to Life, “Nuclear Weapons and the Right to Life," 9 November 1984, para. 5.

33 “Speech of the President of the Republic on the Defense and Deterrence Strategy,” Élysée, 7 February 2020.

34 Ibid. See also “White Paper, Defence and National Security,” French Ministry of Defence, 2013 (“The use of nuclear weapons would only be conceivable in extreme circumstances of legitimate self-defense.”).

9 disarmament under strict and effective international control.”35 The Committee previously affirmed this legal obligation in more general terms.36 Also in General Comment No. 36, the Committee found that “states parties must take all necessary measures to stop the proliferation of weapons of mass destruction, including measures to refrain from developing [and] producing … them [and] to destroy existing stockpiles ….” In addition, the Article VI obligation of the Nuclear Non- Proliferation Treaty to pursue in good faith negotiation of “effective measures relating to cessation of the nuclear arms race at an early date …." also applies to vertical proliferation—the further development and production of nuclear arms by states already possessing them.

While France has reduced its nuclear arsenal by about one-half from its peak in 1991-1992,37 there is no sign that France is planning to unilaterally eliminate its stockpile or to refrain from vertical proliferation; on the contrary, as the development of a third-generation ballistic-missile submarine illustrates.

France also has taken no initiative, on its own or with other nuclear-armed states, to bring about the commencement of multilateral negotiations on the global elimination of nuclear weapons. France abstained from participating in negotiations on the Treaty on the Prohibition of Nuclear Weapons and has since voted against United Nations General Assembly resolutions welcoming the 2017 adoption of the treaty.38

France has also opposed other General Assembly resolutions on nuclear disarmament. On 7 December 2020 France voted against Follow-up to high-level meeting of the General Assembly on nuclear disarmament (A/RES/75/45) and Follow-up to advisory opinion of the international court of justice on the legality of the threat or use of nuclear weapons (A/RES/75/66). The first resolution “[c]alls for the urgent commencement of negotiations in the Conference on Disarmament on effective nuclear disarmament measures to achieve the total elimination of nuclear weapons, including, in particular, on a comprehensive convention on nuclear weapons.” The second resolution “[c]alls once again upon all States to immediately engage in multilateral negotiations

35 Human Rights Committee, General Comment No. 36, 30 October 2018, para. 66, CCPR/C/GC/36.

36 Human Rights Committee, General Comment No. 14, Right to Life, “Nuclear Weapons and the Right to Life," 9 November 1984, para. 7; see also Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, para. 105(2)F, for the unanimous conclusion of the International Court of Justice that “[t]here exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.” The Committee cited General Comment No. 14 and the ICJ’s opinion in endnote 274 to General Comment No. 36.

37 Kristensen and Korda, supra.

38 Most recently, A/RES/75/40, adopted 7 December 2020.

10 leading to nuclear disarmament in all its aspects under strict and effective international control, including under the Treaty on the Prohibition of Nuclear Weapons.”

France additionally voted against the following resolutions expressing moral and ethical as well as legal imperatives for non-use of nuclear weapons and for nuclear disarmament: Humanitarian consequences of nuclear weapons (A/RES/75/39), Ethical imperatives for a nuclear weapon free world (A/RES/75/73),39 Nuclear disarmament (A/RES/75/63), and Towards a nuclear-free world, accelerating the implementation of nuclear disarmament commitments (A/RES/75/65).

D. Adequate Reparation to Victims of Nuclear Testing

Under the ICCPR right to life as interpreted by the Committee, states parties must refrain from testing nuclear weapons. France conducted 210 nuclear explosive tests, aboveground and underground, 17 in Algeria and then 193 in French Polynesia. The first test was on 13 February 1960 and the last on 27 January 1996. In 1998, France signed and ratified the Comprehensive Nuclear-Test-Ban Treaty (CTBT). The CTBT has not yet entered into force, but as a signatory France is obligated not to conduct nuclear test explosions.40

General Comment No. 36, para. 66, states that ICCPR states parties are obligated “to afford adequate reparation to victims whose right to life has been or is being adversely affected by the testing or use of weapons of mass destruction, in accordance with principles of international responsibility.”

France made its last report to the Human Rights Committee on its implementation of the ICCPR in 2012. The Committee subsequently asked France to elaborate on “steps taken to address the shortcomings in enforcing Act No. 2010-2 of 5 January 2010 on recognition and compensation of victims of French nuclear tests, which were identified in fact-finding report No. 856 (2012-2013), which was submitted to the Senate on 18 September 2013 and stated that 98.7 percent of cases filed with the Nuclear Test Victims Compensation Committee were dismissed.”41

39 Supra, note 26.

40 Under Article 18 of the Vienna Convention on the Law of Treaties, a state which has signed and ratified a treaty is obligated to refrain from acts defeating its object and purpose, providing entry into force is not unduly delayed. That rule has attained the status of customary international law.

41 List of Issues in Relation to the fifth periodic report of France, 18 August 2012, CCPR/C/FRA/Q/5.

11 In its reply to the Human Rights Committee,42 France provided a chart outlining how much compensation has been given to nuclear test victims as of March 2015.43 The chart showed little progress from the 2013 report referenced by the Committee. 98.3% of cases filed with the Nuclear Test Victims Compensation Committee had been dismissed. Since 2015, the record has improved. A 2019 report of the Committee shows that since 2015, 40% of the decisions (not cases) have resulted in compensation, with somewhat higher percentages in 2018 and 2019 (56% and 47%).44 Between 2015 and 2019, 285 persons were determined to be eligible for compensation.

A report released earlier this year, Moruroa Files,45 by Disclose, the Princeton Program on Science and Global Security, and Interprt, strongly indicates, however, that the compensation in fact has been far from adequate. The report states:

Our reconstitution of the reality of the nuclear fallout from the atmospheric explosion in 1974 of one of the French bombs, codenamed Centaure, shows that all of the inhabitants of Tahiti, the largest and most populated island of French Polynesia, along with neighbouring islands from the Windward group, were exposed to a dose above 1mSv—the threshold amount officially required for a claim for compensation. That would mean that there are about 110,000 people … who could potentially demand compensation from the French state, should they develop one of the recognized cancers.46

The report also states that Polynesian civilians face a serious obstacle—proving exposure—to obtaining compensation.47 France should fully address the issues raised by the report. Also

42 List of issues in relation to the fifth periodic report of France Addendum, Replies of France to the list of issues, 18 April 2015, CCPR/C/FRA/Q/5/Add.1

43 Annex 1, List of issues in relation to the fifth periodic report of France Addendum, Replies of France to the list of issues, p. 11.

44 Comité d'indemnisation des victimes des essais nucléaires - Rapport d'activité 2019, p. 12 (emphasis added).

45 Disclose, Princeton University’s Program on Science and Global Security, and Interprt, Moruroa Files: Investigation into French nuclear tests in the Pacific, 2021.

46 Disclose, Princeton University’s Program on Science and Global Security, and Interprt, Moruroa Files: The Compensation Trap, 2021 (emphasis added). See also related technical article: Sébastien Philippe, Sonya Schoenberger, and Nabil Ahmed, “Radiation Exposures and Compensation of Victims of French Atmospheric Nuclear Tests in Polynesia,” [2103.06128] Radiation Exposures and Compensation of Victims of French Atmospheric Nuclear Tests in Polynesia (arxiv.org), submitted 9 March 2021.

47 Moruroa Files: The Compensation Trap.

12 deserving attention is the reportedly very low level of compensation of victims of French testing in Algeria.48

Finally, adequate reparation goes beyond monetary compensation.49 France should address what measures are taken, or will be taken, beyond compensation, to assist victims of nuclear testing. Its 2015 reply to the Committee’s question on assessment of the impact of testing on local populations describes medical monitoring and studies,50 but it does not address non-monetary assistance to victims. It is also unclear whether the compensation scheme duly takes into account the disproportionate impacts of nuclear testing on women, children, and Indigenous Tahitians.51

E. The Least Diversion of Resources

In para. 26 of General Comment No. 36, the Committee observed: “The duty to protect life also implies that States parties should take appropriate measures to address the general conditions in society that may give rise to direct threats to life or prevent individuals from enjoying their right to life with dignity.” Among those general conditions are “degradation of the environment,” “the prevalence of life-threatening diseases, such as AIDS, tuberculosis and malaria,” and “widespread hunger and malnutrition and extreme poverty and homelessness.”

Action to alleviate such conditions requires resources, as the present Covid-19 pandemic has demonstrated all too well. UN Secretary-General António Guterres has called for a global ceasefire

48 See “France-Algeria relations: The lingering fallout from nuclear tests in the Sahara,” Maher Mezahi, BBC News, 27 April 2021. (citing report that one Algerian victim has received compensation under French program); Jean-Marie Collin and Patrice Bouveret, Radioactivity Under the Sand, Heinrich Böll Foundation, July 2020, p. 13. (one claim for a victim living in Algeria awarded in almost 10 years; 75 offers of compensation made to civilians and military victims who were present in Algeria during the nuclear test period).

49 See Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. General Assembly resolution A/RES/60/147, adopted by consensus on 16 December 2005, Annex, IX(9): “Rehabilitation should include medical and psychological care as well as legal and social services.”; See also Treaty on the Prohibition of Nuclear Weapons, Article 6.1: “Each State Party shall, with respect to individuals under its jurisdiction who are affected by the use or testing of nuclear weapons, in accordance with applicable international humanitarian and human rights law, adequately provide age- and gender-sensitive assistance, without discrimination, including medical care, rehabilitation and psychological support, as well as provide for their social and economic inclusion.” While France is not a party to the treaty, that provision is relevant to understanding what good-faith implementation of the ICCPR requires.

50 List of issues in relation to the fifth periodic report of France Addendum, Replies of France to the list of issues, 18 April 2015, CCPR/C/FRA/Q/5/Add.1, pp. 13-14.

51 The preamble to the TPNW explicitly recognizes nuclear weapons’ disproportionate impacts on women, girls, and Indigenous peoples. See also General Comment no. 36, § 23, and, regarding the US nuclear tests conducted in the Marshall Islands, Report of the Special Rapporteur on the Implications for Human Rights of the Environmentally Sound Management and Disposal of Hazardous Substances and Wastes, Calin Georgescu, Mission to the Marshall Islands (27-30 March 2012) and the United States of America (24-27 April 2012), A/HRC/21/48/Add.1.

13 so that humanity can defeat its common enemy, the virus.52 Similarly, the vast human and financial investment in nuclear arms can and should be devoted to public health, reducing inequality and poverty, protecting the climate and the environment, and other beneficial ends. The International Campaign to Abolish Nuclear Weapons estimates that in 2019, the world’s nine nuclear-armed countries spent $72.9 billion USD on nuclear weapons; France’s share was $4.8 billion.53

As the Nuclear Non-Proliferation Treaty recalls in its preamble, under the United Nations Charter the “establishment and maintenance of international peace and security are to be promoted with the least diversion for armaments of the world’s human and economic resources.” Ending the diversion of French resources to nuclear arms would promote the protection of life in accordance with Article 6 of the ICCPR.

F. Suggested Questions

We suggest that the Committee pose the following questions to France as part of the list of issues:

● What steps will be taken to bring policy and doctrine regarding threat or use of nuclear weapons into conformity with the right to life? ● What steps will be taken to fulfill the international obligation to pursue in good faith negotiations in order to achieve the aim of nuclear disarmament under strict and effective international control? ● What steps will be taken to refrain from vertical proliferation—the development and production of nuclear weapons—and to destroy the existing stockpile, in accordance with the right to life? ● What is France’s assessment of the issues raised by the report, Moruroa Files, concerning the adequacy of France’s scheme for compensation of victims of nuclear explosive testing? ● What steps will be taken to ensure that adequate reparation is afforded to victims of nuclear explosive testing?

52 Secretary-General’s Appeal for Global Ceasefire, 23 March 2020.

53 International Campaign to Abolish Nuclear Weapons, Enough is Enough: 2019 Global Nuclear Weapons Spending, p. 5, citing Le projet de loi de finance, French Ministère des Armes, 27 September 2018.

14